The amount taken by the plaintiff was not a loan or advance against the rent and could not be adjusted towards rent.

1. This second Appeal filed by the defendant-appellants against the judgment of affirmance arises out of an eviction suit filed by the plaintiff-respondent.

2. Title Suit No. 8 of 2002 was filed by the plaintiff-respondent for eviction of the defendant-appellants on the ground of default in payment of rent by the defendants as well as personal necessity of the plaintiff. The suit was decreed by the trial court on 21.11.2005 against which Title Appeal No. 2 of 2006 was filed by the defendant-appellants, which was dismissed by the lower appellate court by the judgment and decree dated 16.6.2006, which is under challenge in the instant second appeal.

3. Learned counsel for the appellants raises three points for consideration as substantial questions of law. His first contention is that with respect to the question of default, both the courts below have ignored the advance payment made by the defendants to the plaintiff. He submits that although according to the defendants case advance of Rs. 25,000.00 was paid to the plaintiff but according to the admission of the plaintiff in his deposition as P.W.4 an amount of Rs. 20,000.00 was received as advance. He also avers that the plaintiffs case is also with respect to default from January, 2002 to August, 2002, namely, for eight months at the rate of Rs. 300/-per month, hence the said advance would more than cover the defaulted amount and, therefore, the same should have been adjusted towards the alleged defaulted amount and there would have been no question of any default in view of specific decision of the Hon ble Apex Court in the case of Md. Salimuddin V/s. Misri Lai, reported in AIR 1986 SC 1019 and also in the case of M/s Sarwan Kumar Onkar Nath V/s. Subhas Kumar Agarwalla, reported in 1987 P.L.J.R. (SC ) 84.

4. The second point raised by the appellants with respect to the question of personal necessity is that the court of appeal below has not given finding on all the issues nor has it assigned reasons therefore although it had been specifically held by the Hon ble Apex Court in the case of Workmen V/s. Industry Colliery of Bharat Coking Coal Ltd., reported in 2001 (4) SC C. 56 and also in the case of H.K.N. Swami V/s. Irshad Basith, reported in 2005 (X) SC C. 243 that the findings on all the issues with reasons should be given. In that regard, he also submits that the trial court has casually discussed the question of partial eviction, but the lower appellate court did not at all consider the same.

5. The third point raised by learned counsel for the appellants is that the subsequent development has to be considered by the court below and there was ample material to show that several shops owned by the plaintiff were vacated during the pendency of the suit and even today a bigger shop other than the suit shop is available for the plaintiff, who, if he wants, can start his business of restaurant therein. Hence, he submits that on that score also the judgments and decrees of the courts below are fit to be set aside.

6. So far as the first question with regard to loan/advance of rent is concerned, it is quite apparent from the writ-tea statement itself that the amount taken by the plaintiff from the defendants was not as loan or advance against the rent, rather paragraph 10 of the written statement specifically shows that the defendants themselves claimed that it was merely security money, which was to be returned to the defendants at the time of their vacating the suit premises. In the said circumstances, the amount taken not be ing loan or advance of rent, it cannot legally be adjusted towards rent. The decisions of the Hon ble Apex Court are also with respect to loan and advance taken by the plaintiff from the tenant out of rent, which was to be paid by the tenant, in the said circumstances, the said point does not find favour of this Court.

7. So far the question of personal necessity is concerned, from the judgment of the trial court, it is quite apparent that it has